IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 421 OF 2023 (Arising out of SLP (C) No. 15942/2020)

RAMAKRISHNAN KADINHIPALLY AND ORS. Appellant(s)

VERSUS

P.T. KARUNAKARAN NAMBIAR Respondent(s)

O R D E R

1. Leave granted.

Digitally signed by R Natarajan

2. We have heard Mr. V. Chitambaresh, learned Senior Advocate, appearing on behalf of the appellants and Mr. Kaleeswaram Raj, learned Advocate, appearing on behalf of the respondent-original plaintiff.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2019 passed by the High Court of Kerala at Ernakulam in Regular Second Appeal No. 628 of 2011, by which the High Court has allowed the said Second Appeal and has remanded the matter to the learned trial Court by upsetting the concurrent findings of facts recorded by both the courts below and not only that but has also permitted the original plaintiff to amend the plaint and incorporate the prayer of fixation of the boundary, which was never prayed, the original defendant has preferred the present Appeal. Signature Not Verified

4. The Respondent herein filed a civil suit before the learned trial Court asking for a simple prayer of permanent injunction/prohibitory relief only. The learned trial Court framed Date: 2023.01.30 17:24:52 IST Reason:

the following issues:-

"1) Whether the plaintiff is having title and possession over the plaint schedule property?

2) Whether the plaint schedule properties are identified?

3) Whether the cause of action alleged is true?

4) Whether the plaintiff is entitled to get an injunction as prayed for?

5) Order as to Cost?

Additional Issue 6:- Whether the right of the plaintiff, if any, over the plaint schedule property is lost by adverse possession of the property by the defendants and limitation?"

Both the plaintiff as well as the defendant led the evidence. Even the plaintiff also took out a commission and the Advocate Commissioner submitted the report and the plan. It appears that the Advocate Commissioner inspected the property by availing the assistance of the Taluka Surveyor and the Village Assistant also. That thereafter, on appreciation of evidence, the learned trial Court held all the issues in negative and against the plaintiff and in favour of the defendant and consequently dismissed the suit. The first appeal against the judgment and order passed by the learned trial Court came to be dismissed. The findings recorded by the learned trial Court, therefore, came to be confirmed by the first Appellate Court.

5. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned trial Court as well as the first Appellate Court dismissing the suit for prohibitory injunction, the original plaintiff-respondent herein filed present Second Appeal under Section 100 of the CPC before the High Court. It appears that,

while admitting the Second Appeal, the High Court formulated the following substantial questions of law:-

"1. When under B schedule of Ext.A1 partition deed, three taks of properties were allotted to the share of Lakshmi Amma and under Ext.A2 gift deed, the said B schedule properties were transferred in favour of the appellant, whether courts below were justified in holding that appellant has no title to the plaint schedule properties for the mis-description of the properties in Ext.A2.

2. Whether on the evidence, courts below were justified in holding that appellant did not establish possession of the plaint schedule property and therefore is not entitled to the decree for permanent prohibitory injunction."

6. By the impugned judgment and order and without answering anything on the substantial questions of law framed/formulated, absolutely in a casual manner, the High Court has allowed the Second Appeal and has set aside the concurrent findings recorded by both the courts below and thereafter has remanded the matter to the learned trial Court permitting the original plaintiff to amend the plaint and pray for fixation of the boundary.

7. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original defendants have preferred the present Appeal.

8. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all. From the impugned judgment and order passed by the High Court, it appears that the High Court has exercised the powers as if the High Court was deciding the Writ

Petition under Article 226 of the Constitution of India. The High Court has not appreciated at all that the High Court was deciding the Second Appeal under Section 100 of the CPC and that too against the concurrent findings of fact by both the courts below, which were, as such, on appreciation of evidence on record. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable.

9. Even otherwise, it is required to be noted that, by the impugned judgment and order, the High Court has remanded the matter to the learned trial Court permitting the plaintiff to amend the plaint by incorporating a prayer for fixation of boundary and to adjudicate the issue in reference to the description given in Exh. A-1 – Partition Deed. It is required to be noted that first of all such a prayer to permit the plaintiff to amend the plaint was not made on behalf of the plaintiff. No such application was made. In absence of any such application and a case is made out to permit the plaintiff to amend the plaint and that too in a Second Appeal under Section 100 of the CPC, such an order could not have been passed by the High Court. Even otherwise, while remanding the matter to the learned trial Court, no reasons are assigned as to why the matter is required to be remanded by quashing and setting aside the concurrent findings recorded by both the courts below which, as such, were on appreciation of evidence on record. The only reason given by the High Court is that the learned counsel appearing on behalf of the plaintiff has conceded that the plaint was drafted without incorporating a substantial prayer and that for the mistake committed by the person, who drafted the plaint, the

plaintiff should not be made to suffer.

10. At the cost of repetition, it is observed that the High Court was dealing with the Second Appeal under Section 100 CPC and the concurrent findings recorded by both the courts below which were on appreciation of evidence on record. Neither at the stage of deciding the suit nor even before the first Appellate Court even such a prayer was made to amend the plaint, which is now permitted by the High Court, despite the fact that earlier in the suit during the course of trial, the plaint was amended. Under the circumstances also, the impugned judgment and order passed by the High Court is unsustainable.

11. Even for remand, a specific case is to be made out as per Order 41 Rule 23, 23A and 25 of the CPC. No findings are recorded by the High Court that the case falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to be remanded to the learned trial Court on setting aside the concurrent findings of fact recorded by both the courts below. The High Court has mechanically remanded the suit, which is wholly impermissible.

12. Even the substantial questions of law framed by the High Court, while admitting the second appeal, which are reproduced herein above cannot be said to be as such substantial questions of law at all. The same are on questions of fact. Under the circumstances, the impugned judgment and order passed by the High Court quashing and setting aside the concurrent findings recorded by both the courts below, while exercising the powers under Section 100 CPC, is unsustainable.

13. In view of the above and for the reasons stated above, the present Appeal succeeds. The impugned judgment and order passed by the High Court is hereby quashed and set aside. The judgment and decree passed by the learned trial Court confirmed by the first Appellate Court is, hereby, ordered to be restored. No costs.

...........................J (M.R. SHAH)

...........................J (HIMA KOHLI)

New Delhi; January 19, 2023

ITEM NO.7 COURT NO.4 SECTION XI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SLP (C) No. 15942/2020

RAMAKRISHNAN KADINHIPALLY & ORS. Petitioner(s)

VERSUS

P.T. KARUNAKARAN NAMBIAR Respondent(s)

Date : 19-01-2023 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MS. JUSTICE HIMA KOHLI

• For Petitioner(s) Mr. V. Chitambresh, Sr. Adv. Mr. C. Govind Venugopal, Adv. Sonal Gupta, Adv. Mr. Manoj V. George, Adv. Mr. K.M. Vignesh Ram, Adv. Mr. Nasib, Adv. Ms. Darshna Nair, Adv. Ms. Shilpa Liza George, AOR
• For Respondent(s) Mr. Kaleeswaram Raj, Adv. Mrs. Thulasi K Raj, Adv. Mr. Nishe Rajen Shonker, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The present Appeal is allowed in terms of the signed order.

Pending applications, if any, stand disposed of.

(R. NATARAJAN) (NISHA TRIPATHI) ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR (Signed order is placed on the file)